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Iosefa v Lelemia [2006] TVHC 6; Case 06 of 2006 (13 October 2006)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
CIVIL JURISDICTION

Case No: 6/06

BETWEEN:

MATANILE IOSEFA
Petitioner

AND:

APISAI IELEMIA
Respondent

BEFORE THE CHIEF JUSTICE

M Elisala for petitioner
K. Muaror for respondent

Hearing: 10 October 2006
Judgment: 13 October 2006

JUDGMENT

This is an election petition seeking an order that the election of the respondent as a member of parliament for Vaitupu be declared invalid and a bye-election declared for the seat.

The petition was originally brought on two grounds:

1. That the respondent engaged in corrupt or illegal practices and his election is therefore invalid pursuant to section 41(1) of the Electoral Provisions (Parliament) Act; and

2. In the alternative, that the respondent engaged in corrupt or illegal practices such that it may be reasonably supposed to have affected the result and his election is therefore void pursuant to section 41(2) of the Electoral Provisions (Parliament) Act.

However, counsel for the petitioner has conceded that there is no evidence to support the second ground and she proceeds on the first ground only.

Section 41(1) provides:

"(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent."

The allegation of the petitioner is that the respondent bribed voters with gifts of cash to induce them to vote for him. By section 45 of the Act, bribery is a corrupt practice and a criminal offence.

At the general election held on 3 August 2006, there had been five candidates for this constituency. The respondent received the highest number of votes with 522, Taukelina Finikaso received 407 and the petitioner was third with 354.

Both parties agree that it is custom in Tuvalu to give gifts, especially to relatives. The respondent points out that a sitting member of Parliament is expected to donate more because of his position. The respondent had been elected a member for Vaitupu in the last Parliament. That additional obligation has not been challenged by the petitioner and he accepts it is general custom to give gifts. He suggests, correctly, that it is the manner in which and the motive for which they were given that the court must consider.

Evidence of all but one of the witnesses in the case was by way of affidavit and each also gave evidence and was cross examined.

The petitioner was not present at any of the incidents about which complaint is made and his evidence was, necessarily, largely hearsay. He relies on the evidence of three witnesses who alleged they had been bribed. Two of the three witnesses were husband and wife. The wife, Litia Manalea, described an incident in late July, a few weeks before the election when she met the respondent's wife, Sikinala, in the Funafuti Fusi. As they were chatting, the witness felt somebody brush past her from behind and slip something into her hand. She turned to see it was the respondent and that he had placed a $20 note in her hand. She told the Court that she asked what it was for and the respondent replied that it was for the kid. He added that she was to remember him in the upcoming election. She then understood the payment was to get her husband and herself to vote for him. She also told the Court, despite a comment to her affidavit that she thought it strange the respondent should give her money for the first time at this particular stage, that it was only the remark about remembering the respondent that made her think the payment was to influence her vote. She said that, if those words had not been said, she would have simply regarded it as a gift. She related this incident to her husband that evening and his recollection of her report largely accords with her evidence.

The respondent admitted the payment. Such payments were, he said, done wholly on the basis of long standing Tuvaluan custom and tradition and the expectations of the extended family and the Tuvalu community at large. He denies that the money was given in the manner described by Litia, that it was he who gave it or that anyone made reference to the election.

He describes how his wife saw Litia as soon as they entered the Fusi and went across to her to chat. As he joined them shortly afterwards, he heard his wife offer some money to Litia to assist her with her shopping and it was accepted. Sikinala, also gave evidence of the incident. She agrees it was she who offered and gave the money. She had helped Litia's family before. She did so because they were related; the respondent and Litia's husband's father are cousins.

The second witness was Litia's husband, Leo Manalea. He spoke of an incident about a week after that described by his wife. It again occurred in the Fusi where he was shopping with his son. The respondent approached him and asked what he was doing. On being told that the witness was getting something for the kids, the respondent gave him $5 and said it was to buy stuff for the kid. Leo considered it was given as an inducement because he had never before been given money by anyone running for election.

The respondent cannot recall the incident but accepts that given the small and close-knit community and Tuvaluan customs and traditions, it would not be unusual for him to have given such a sum to purchase something for a child especially in the case of a relative.

The last witness for the petitioner was Timo Alee, a police officer of nine years experience. He is also related to the respondent but as a third or fourth cousin.

He also met the respondent in the Fusi about a week before the election. The shop was quite crowded and the respondent approached him and gave him a $20 note. The witness did not want to take the money and it fell to the ground. He picked it up and, as he straightened up, the respondent was walking away saying it was to buy something for the kids. The witness pointed out he did not need it but took it on the respondent's insistence. The respondent had never given the witness money before and Timo assumed it was a campaign gift because of the proximity of the impending election.

Timo had not provided an affidavit and so the respondent did not refer to this incident in his affidavit in response. However, it appears there is no dispute that it may have happened in the same way as the incident with Leo.

As has been stated, both the respondent and his wife gave evidence. There was no attempt to deny the giving of the sums of money described. The only substantial challenge is to the motive for the giving, the manner in which the money was given to Litia and the alleged reference to remembering him. The respondent's case is that, when he meets Vaitupu people he often helps them with small donations for their shopping but he points out it depends how much he has and the number of people. The obligation to act in that way is in accordance with custom and tradition and the additional expectation placed on an elected member of Parliament. His constituents not only expect his assistance in times of need but also a share of his parliamentary emoluments because his parliamentary seat belongs to the island and its people. He explained that he would usually give to relatives if they ask or when he meets them in the shop and has money to spare.

His wife supported him on this and in his account of the events with Litia. She also stated that the relationship with Litia and her family is closer than either of those two witnesses initially disclosed. Litia's evidence in chief was that she was not related to the respondent and knew him and his wife from Vaitupu. She said she had once asked him for assistance but had never requested money. The assistance to which she referred was a gift of some sugar by Sikinala some years ago. Her affidavit states that, prior to these incidents in July, she had never had any dealings with the respondent but points out that the petitioner, Matanile, is the brother of Leo's mother adding that "Matanile has always been there for us especially when we were in need of assistance".

Counsel for the respondent suggests that the evidence of both Litia and Leo about the relationship with the respondent is a significant indicator of their credibility and attitude. As has been pointed out, Litia stated in chief that she was not related to the respondent and knew him and his wife from Vaitupu. In cross examination she was again asked about the relationship and professed not to know but then added that she believed her husband was related to the respondent.

Leo's affidavit was to similar effect. He stated that prior to these incidents, he had never had any dealings with Apisai and then added "Matanile Iosefa is my uncle. I am also related to Leti Pelesala [another candidate in the Vaitupu election] Leti's wife and my father are cousins." Despite those references, he omits any mention of his relationship to the respondent. However, in cross examination, he agreed they were related and, when asked why he had not mentioned it in his affidavit, explained he had not been asked. He was asked if he had told his wife of his relationship with the respondent and said he had but added that she had difficulty in hearing. They have been married since 1993.

A similar comparison can be made with respect to the evidence these witnesses gave about their social relationship with the respondent and his wife. In their affidavits, neither makes any mention of it apart from each saying that prior to these incidents they had never had any dealings with Apisai. In addition, Litia, when speaking of the incident in the Fusi, stated, "I do not know Sikinala very well and we do not normally talk."

The affidavits of the respondent and his wife paint a different picture. They point out that they have known Leo and Litia since they went to live on Vaitupu because their homes are next to each other. That was accepted by Leo in cross examination. Sikinala described how they often stopped to pass the time of day when they met, especially when Litia brought her children to the school which is also near the respondent's home. The respondent stated that they acknowledged each other almost daily. Once Sikinala was asked by Litia for money for sugar but gave, instead, some sugar from her own stock. On another occasion when Litia's family, including Leo, were leaving Vaitupu in the boat, she gave Litia money to buy food. Sikinala also told how Litia, who runs a small sewing business, had asked her before the 2002 election if she could have Sikinala's industrial sewing machine if the respondent won the election. The request was repeated in the Fusi and it was partly because Sikinala realised her refusal had disappointed Litia that she gave her the £20.

Litia acknowledged, when asked in cross examination, that she had spoken about the industrial sewing machine but just to offer to buy it on one occasion only. It is another example of an incident mentioned by the respondent and his wife but only acknowledged by Litia when faced with it in cross examination.

I consider these aspects of the evidence are significant and I shall return to them later.

In his evidence, Timo stated that he was concerned about the gift and thought that, "if anything happened, I would say he gave me money". His concern was such that he took the money home intending not to use it. However, it was in fact used.

Timo testified to his suspicions about the reason for the gift because of the timing close to the election. As a police officer he would have realised the circumstances, as he told the Court he had perceived them, amounted to bribery. He was concerned enough to consider the possibility of something happening which would require him to give some account of them yet he did not take any step to report the incident or to hand in the $20.

The burden is on the petitioner to prove to the civil standard that these or any of them were corrupt practices - that they were, in truth, bribes to secure the recipients' support.

There can be no doubt that any gift given near to an election by a candidate is likely to give rise to suspicion of bribery. The respondent deposed to that. He had already been elected to the previous Parliament. He knew only too clearly the offence of bribery and the very serious consequences. For that reason he was careful to avoid the risk. Yet he accepted that the fact he was a candidate did not and could not preclude him from his customary obligations.

It is a difficult path to tread in Tuvalu. As was so aptly described by Millhouse CJ in relation to the attendance by candidates at gatherings in Kiribati:

"A candidate is between a rock and a hard place. If he or she does not attend gatherings or at a gathering refuses to bring a gift requested...he or she will lose votes rather than win them. On the other hand if he or she complies then there is the risk of complaints." (Teiraoi v Tamwi, 13 February 2003)

That also applies in Tuvalu in respects of customary gifts. There is no real answer. It is no solutions to abandon your customary obligations and give no gifts. Neither is it solved by stating clearly that a gift is nothing to do with the election because that very statement will be taken as inferring that it is. If the candidate says it is for the family or the children, he is likely to be disbelieved for the same reason. If he says nothing it will still be open to question. In this case, it is only in the first incident that any reference to the election has been suggested.

I was not happy with evidence of either Litia or Leo. The manner in which the evidence of their relationship with the respondent and of the social contact between the families was given leaves me with a doubt about their frankness and of their motive in giving this evidence. These were more than inadvertent omissions. I am satisfied that they were both deliberately distorting the evidence by omission in order to imply a more remote relationship so a gift would be less easily explained in terms of custom. It was only when confronted with the evidence of the respondent and his wife that they acknowledged it. Apart from the fact that gifts were given, I am not satisfied that the account of events given by either of those witnesses was truthful or accurate.

However as I have stated, I am satisfied that gifts were given by Sikinala to Litia and by the respondent to Leo and Timo. The question for the Court when any gift is proved to have been given by a candidate or his agent during the election is the purpose for which it was given. The petitioner must prove that it was a bribe and not an innocent gift made under the requirements of custom. The intention of the donor is the critical factor and, in determining that, the perception of the recipient is, of course, a relevant consideration.

The Court has evidence of three incidents when gifts were given. Counsel for the petitioner suggests that the manner, timing and circumstances generally of such unsolicited gifts provide overwhelming evidence of corruption. The respondent's case is that all three events were well within the customary norm and would have happened whether or not there was an election.

I accept on a balance of probabilities that the gift was given to Litia by Sikinala and not by the respondent. Litia testified to the fact that it was done when there were few people around so it would have been seen. In those circumstances, I fail to see any need for the surreptitious manner in which she alleges it was slipped into her hand an I do not accept that occurred. Neither do I accept the truth of Litia's evidence of the comment about remembering the respondent in the election.

Had Sikinala given the gift corruptly, I would have had no difficulty in finding that she was doing it as the agent of the respondent. However, I prefer the evidence of the respondent and his wife and am not satisfied this has been shown to be anything but a gift given under custom.

The credibility of the third witness, Timo, is seriously impaired by his failure to take the action that would be expected of a police officer who clearly recognised the seriousness of the event. He also told the court that, in custom, such a gift would not have been given in public. That suggestion was not made by any other witness. He told the Court that this incident occurred on a Sunday when the Fusi was busy. If it is correct that such a gift in custom would not be given in public, the actions of the respondent described by Timo would be little short of foolhardy. If giving in public could not be a customary gift, it would entail a serious risk that others seeing it would assume it was a bribe.

In all these cases, the proximity of the election made these gifts unfortunate and likely to give rise to suspicion but the evidence falls far short of satisfying the burden placed on the petitioner to prove on a balance of probabilities any corrupt practice by the respondent. The petition is dismissed.

In accordance with the requirements of section 57 of the Electoral Provisions (Parliament) Act, I hereby certify to the Minister that the respondent, Apisai Ielemia, was validly elected as a member of Parliament for Vaitupu and his election is, hereby, confirmed.

I order that a certified copy of this judgment be delivered to the Minister and to the Speaker of the House.

Dated, 13^th day of October 2006

CHIEF JUSTICE